Sentenced to Death For Life

This is the first in a series of essays that will explore the history of the death penalty; Oregonians’ ambivalent relationship with the death penalty since statehood; the serious and jeopardous flaws in Oregon’s death penalty law that renders its application arbitrary and unreliable; the shockingly excessive fiscal costs of the administration of Oregon’s death penalty; and finally, a call for the repeal of the Oregon death penalty, or at a minimum, for changes that should reduce its employment and meaningfully narrow its application to Oregon’s most culpable murders.

Colonial Times and a Young United States

Executions in America date back to colonial times. In 1608, George Kendall, a resident of Jamestown, became the first American colonist to be executed.[1] The first documented execution of a woman in America occurred in 1632, when Jane Champion was hanged for murder.[2] For the American colonies, executions were designed not only to punish crime, but, more importantly, were staged to maintain social order and keep members of the society in a Machiavellian state of fear.[3] As the colonies began to mold a nation, products of the Enlightenment influenced American views on justice.

Dr. Benjamin Rush attended what is now known as Princeton University and finished his college degree at age fifteen.[4] He went on to earn a medical degree from the University of Edinburgh before settling in Pennsylvania to practice medicine. Rush participated in the Sons of Liberty’s movement and became friends with other American Patriots, such as Thomas Paine. Rush had studied numerous languages and having read Cesare Beccaria’s work, On Crime and Punishment, became passionate about criminal justice reform. He represented Pennsylvania in the Continental Congress in 1776 and 1777. Eventually, Rush became one of the first Americans to call for the abolition of the death penalty.[5]

Although Rush played a crucial role in start of the American death penalty abolition movement, his home colony of Pennsylvania nonetheless executed thirty-six people in Philadelphia between 1750 and 1775.[6] Of that group, only about 20 percent of those executions were for murder, with nearly two thirds of the executions imposed for property crimes. The execution rate rose with Revolutionary War tension, resulting in forty-one men being hanged in Philadelphia between 1776 and 1783. Sixty percent of those executions were for property crimes. Although, imposing a death sentence for property crimes is considered cruel and unusual by today’s standards, England in 1776, (then still ruling the colonies) punished more than 200 different crimes by death.[7]

The Founding Fathers had English law as a reference point for forming the United States.[8] The words of the English Bill of Rights and the Eighth Amendment of the United State Constitution are essentially identical.[9] The terms “cruel and unusual” originally appeared in the English Bill of Rights in 1689.[10] The original English prohibition on cruel and unusual punishment was aimed at preventing punishments that were not authorized by any statute or punishments that were disproportionate to the offense. Meanwhile, the American Eighth Amendment, using the same terminology, appeared to be more concerned with preventing torture or barbaric punishment.[11] Debates and conversations indicate that the constitutional Framers considered far fewer government actions to be cruel or unusual than those questioned today.[12] In fact, some constitutional Framers, such as Governor Edmund Randolph of Virginia, thought that a prohibition on cruel punishment was unnecessary.[13]

In early American legal history, most federal and state judges accepted the view that the cruel and unusual clause prohibited certain methods of punishment, though the death penalty was not among those prohibited.[14] During the same time period in history — the Stuart Era — barbaric methods of punishments that were common in England, were extremely rare in the Americas. Because those involved in the American legal system knew about the gruesome punishment methods in England, the cruel and unusual clause was rarely asserted in American courts.[15]

It was not until 1892, in O’Neil v. Vermont, that the United States Supreme Court began to hint at an expanded meaning of the cruel and unusual clause. O’Neil was a liquor dealer licensed in New York. He accepted and filled mailed liquor orders for residents of Vermont. After being charged with the illegal sale of alcoholic beverages in Vermont, O’Neil was convicted on 307 charges and fined $6,638.71, an amount exceeding $157,000 today. Moreover, when O’Neil was unable to pay his fine by a specified time, he was “confined at hard labor in the house of correction at Rutland [Vermont] for the term of 19,914 days – that is more than fifty-four and half years of hard labor.”[16] O’Neil’s sentence was affirmed by the Court, however, Justice Field authored a dissent concluding that the sentence was “one exceeding in severity – considering the offenses of which the defendant was convicted — anything which I have been able to find in the records of our courts for the present century.”[17] The concept of constitutional proportionality in sentencing described by Justice Field, is explicit in Article I, section 16 of the Oregon Constitution.[18]

Death Penalty Cases

Over the last fifty years the United States Supreme Court has traveled an uncertain jurisprudential course in its approach to the constitutionality of the death penalty. Summarized below, are the cases representative of the Court’s irregular, and to some extent, inconsistent death penalty jurisprudence.

McGautha v. California

402 U.S. 183 (1971)

The United States Supreme Court reviewed separate death cases in McGautha v. California and Crampton v. Ohio, consolidated under McGautha. The two men were convicted of first-degree murder under the death penalty laws of California and Ohio. In both cases, a jury decided to impose the death penalty. In McGautha’s case, in accordance with California law, the jury imposed the death penalty after a sentencing proceeding conducted separately from the guilt proceeding. Conversely, in Ohio, a jury sentenced Crampton to death after a single proceeding. The Supreme Court reviewed the cases to decide whether allowing a jury to impose the death penalty with unbridled discretion, and whether imposing the death sentence during the same proceeding in which guilt was determined, violated a capital defendant’s federal constitutional rights.

Pointing to a jury’s ability to differentiate between a death sentence for McGautha and a life sentence for Wilkinson (McGautha’s co-defendant), the Court approved a jury’s unfettered discretion to impose a death sentence,[19] and in Crampton’s case, the use of a single proceeding to determine both guilt and the penalty.[20]

Furman v. Georgia

408 U.S. 238 (1972)

In 1972 in Furman v. Georgia, the defendant, who had a sixth grade education, murdered the homeowner during a burglary, and was sentenced to death under Georgia’s death penalty law. In a five-to-four vote, involving nine separate opinions, the Court held that the Georgia death penalty law which gave the jury complete sentencing discretion, resulted in sentences that were arbitrarily, wantonly, and freakishly imposed, in violation of the cruel and unusual provision of the Eighth Amendment to the United States Constitution.

Two other cases — Jackson v. Georgia and Branch v. Texas — were also considered with Furman. In all three cases the defendants were African American. In Jackson, the defendant escaped from a prison work crew, entered a house after the victim’s husband had left for work and held scissors against the neck of the victim, demanded money, and sexually assaulted the victim. Jackson was convicted of rape and sentenced to death. In Branch, the defendant broke into the home of a 65 year old woman while she slept and sexually assaulted her. Branch was convicted of rape and sentenced to death under Texas’ death penalty law.

The Court’s holding in Furman, that imposition of the death penalty for the crime of rape, and permitting a jury unfettered sentencing discretion to impose capital punishment, violated the Eighth and Fourteenth Amendments to the United States Constitution,[21] resulted in a temporary de facto moratorium on capital punishment throughout the United States.

Gregg v. Georgia

428 U.S. 153 (1976)

In 1976, just four years after its decision in Furman, the Court, in three cases, Gregg v. Georgia, Jurek v. Texas,[22]and Proffitt v. Florida, collectively referred to as Gregg, considered whether the death sentences imposed under those states amended death penalty laws that guided jury discretion, and allowing jurors to consider aggravating and mitigating factors in deciding whether to impose the death penalty, violated the Eighth and Fourteenth Amendments.

In Gregg, the defendant was convicted of murder in a bifurcated proceeding in which a jury first determined guilt, and then in a second proceeding, the jury determined the appropriate sentence and was required to make specific findings of aggravated circumstances to justify a sentence of death. On November 21, 1973, while hitchhiking, Gregg and a man named Allen were picked up by Simmons and Moore. Another hitchhiker, Dennis Weaver, was picked up and dropped off during the process. The other four travelers went to a rest stop where, the next morning, the bodies of Moore and Simmons were found in a ditch. On November 23, Weaver read about the deaths of Simmons and Moore and reported the other two men to authorities. Gregg and Allen were arrested the next afternoon in Simmons’ car with a .25-caliber pistol which later was determined to be the murder weapon. Gregg admitted to killing and robbing the two men, but asserted self-defense. Allen’s testimony at trial did not corroborate the self-defense theory and, ultimately, a jury found Gregg guilty and sentenced him to death.[23]

In concluding that the death penalty was constitutional under Georgia’s amended death penalty law, the Court “ look[ed] to objective indicia that reflect the public attitude toward [the] given sanction,” noting that “ history and precedent strongly support a negative answer to [the] question” of whether “ the sentence of death for the crime of murder is a per se violation of the Eighth and Fourteenth Amendments to the Constitution.”[24] The Court noted the long history of acceptance of the imposition of the death penalty in this country, stating that, “It is apparent from the text of the Constitution itself that the existence of capital punishment was accepted by the Framers.”[25] In that regard the Court observed that text of the Fifth Amendment, which was adopted at the same time as the Eighth Amendment accounted for the continued use of capital punishment.[26] As did the later adopted Fourteenth Amendment.[27]

In rejecting the defense argument that societal “standards of decency” had evolved to the point that the Eighth Amendment can no longer support capital punishment, the Court stated that “it is now evident that a large proportion of American society continues to regard it [the death penalty] as an appropriate and necessary criminal sanction.”[28] To demonstrate societal support for the death penalty, the Court noted that thirty-five states, through elected legislators, condoned the death penalty.[29] Finally, citing federalism considerations, the Court observed that it could not overrule the Georgia legislature’s findings that capital punishment served as a useful deterrent to future capital crimes and an appropriate means of social retribution against its most serious offenders.[30] In addition to holding that the death penalty itself was constitutional, the Court also approved three other procedural reforms: (1) bifurcated proceedings in which guilt and sentence were separately determined; (2) automatic appellate review of capital cases; and (3) proportionality review intended to eliminate sentencing disparity.[31]

McClesky v. Kemp

481 U.S. 279 (1987)

In McCleskey v. Kemp, the defendant argued that his death sentence violated the Eighth Amendment and the Equal Protection Clause of the Fourteenth Amendment because Georgia’s death penalty law was administered in a racially discriminatory manner. In support of his equal protection claim, McCleskey relied on the Baldus Study demonstrating that the death penalty was imposed 22 percent of the time when the defendant was black and the victim was white. However, the death penalty was only imposed 8 percent of the time when both the defendant and victim were white and only 1 percent of the time when both the defendant and the victim were black. Perhaps more importantly, the prosecution sought the death penalty 70 percent of the time when there was a black defendant and white victim, but only 19 percent of the time when the races of the parties are switched.[32]

Although the statistics in the Baldus Study refocused a societal spotlight on the administration of the death penalty, the Court, however, focused on the constitutional analysis based on precedent.[33] According to the Court, to sustain his equal protection claim, McCleskey needed to “prove that the purposeful discrimination ‘had a discriminatory effect’ on him.”[34] Said another way, McCleskey had the burden of proving that the prosecution purposefully discriminated against him and that caused the imposition of the death penalty. In rejecting the equal protection claim, the Court stated that “[McClesky] offer[ed] no evidence specific to his own case that would support an inference that racial considerations played a part in his sentence.”[35]

In affirming McCleskey’s death sentence the Court observed that “Legislatures also are better qualified to weigh and ‘evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts.’”[36]

Atkins v. Virginia

536 U.S. 304 (2002)

In Atkins v. Virginia, the defendant and another man, abducted the victim, robbed him of the money he was carrying, forced the victim to withdraw money from an ATM, then took the victim to a remote location and shot him. A forensic psychologist that evaluated Atkins before trial, concluded that he was mentally retarded and had an IQ of only 59.[37] Atkins was convicted of abduction, armed robbery, and capital murder resulting in a sentence of death. On appeal, the Virginia Supreme Court stated that it was “not willing to commute Atkins’ sentence of death to life imprisonment merely because of his IQ score.”[38]

In concluding that evolving standards of decency rendered the execution of the mentally retarded cruel and unusual in violation of the Eighth Amendment, the Court observed that there was a national consensus against executing the mentally retarded, (that it was rare even in those states permitting the practice), and that the substantial impairments of the mentally retarded make it less defensible to impose the death penalty as retribution for past crimes and less likely that the death penalty will have any deterrent effect.”[39]

Roper v. Simmons

543 U.S. 551(2005)

At age 17 Simmons planned and committed a capital murder, and after turning 18, was sentenced to death. In Roper v. Simmons, the court held that the Eighth and Fourteenth Amendments forbid the imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed.[40] In doing so, the Court observed that capital punishment should be limited to those offenders committing a “narrow category of the most serious crimes” and whose extreme culpability makes them “the most deserving of execution.”[41] According to the Court there are three general differences between juveniles under 18 and adults that demonstrate that juvenile offenders cannot reliability be classified among the worst offenders: (1) juveniles’ susceptibility to immature and irresponsible behavior means that “their irresponsible conduct is not as morally reprehensible as that of an adult;” (2) juveniles’ own vulnerability and comparative lack of control over their immediate surroundings mean that juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment; and (3) because juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of an irretrievably depraved character.[42] Based on those observations, the Court concluded that neither of the two penological justifications for imposing the death penalty — retribution and deterrence — provides adequate justification for imposing the death penalty on juvenile offenders.

Notably, Justice Scalia’s dissent in Roper, sets forth an originalist argument often utilized to support the imposition of the death penalty. Justice Scalia refers to the majority decision as a “mockery” because it asserts that the Stanford opinion fifteen years earlier was not wrong, but that the Constitution had changed during the fifteen-year period.[43] Justice Scalia goes on to add that “The Court reaches this implausible result by purporting to advert, not to the original meaning of the Eighth Amendment, but to ‘the evolving standards of decency. . .’”[44] Scalia’s dissent highlights the tension between the Supreme Court justices about whether the Constitution evolves to fit society as the progressive views contend — or how, as the originalist argument asks, the Constitution’s meaning can simply change over time — in only fifteen years in the cases of Stanford and Simmons.

Hurst v. Florida

577 U.S. ___ (2016)

Under Florida’s death penalty law, in the penalty phase the judge first conducts an evidentiary hearing before a jury. By majority vote, the jury renders an “advisory sentence.” Independent of the jury’s recommendation the judge must independently “find” and “weigh” the aggravating circumstances before imposing a sentence of life or death.[45]

Relying on its prior decisions in Arizona v. Ring 536 U.S. 584 (2002) and Apprendi v. New Jersey, 530 U.S. 466 (2000) the Court held that Florida’s death penalty procedure violated the defendant’s Sixth Amendment jury trial right because the judge and not the jury is required to make the critical findings necessary to impose the death penalty.[46] In other words, the defendant’s punishment was increased from life to death by the judge’s independent findings. There are currently 400 Florida death row inmates, most of whom could be affected by the Supreme Court’s ruling in Hurst.[47]

Methods of Execution In America

Although New Mexico (2009), Connecticut (2012), Maryland (2013), and Nebraska (2015) have recently repealed their death penalty laws, replacing them with sentences of life without parole, thirty-three states, the federal government, and the U.S. Military still have death penalty statutes, in which five different methods of execution can be imposed.[48] All thirty-three states provide for execution by lethal injection,[49] however, sixteen jurisdictions permit the condemned to choose an alternative execution method such as electrocution (Alabama, Arkansas, Florida, Kentucky, Oklahoma, South Carolina, Tennessee, and Virginia);[50] gas chamber (Arizona, California, Missouri, Wyoming, and Oklahoma); hanging (Delaware, New Hampshire and Washington); and firing squad (Oklahoma and Utah).[51]

Capital Punishment And the Constitution

The United States has, and still does, execute capital defendants by lethal injection, electrocution, hanging, gas chamber and firing squad. In 2013 Virginia executed Robert Gleason by electrocution.[52] Delaware hanged Billy Bailey in 1996 for killing an elderly couple.[53] Arizona executed Walter Lagrand with lethal gas in 1999.[54] In 2010, Ronnie-Lee Gardner was executed in Utah by firing squad.[55] Because the Fifth Amendment accounts for capital punishment and was adopted at the same time as the Eighth Amendment, it has proven difficult for death penalty opponents to successfully argue that specific methods of execution are unconstitutionally cruel and unusual.

However, in a provocative dissent, in Glossip v. Gross, 576 U.S. ___ (2015), Justice Breyer, joined by Justice Ginsburg, opined that the modern administration of the death penalty maybe unconstitutional in violation of the cruel and unusual provisions of the Eighth Amendment.[56] According to Justice Breyer, there are at least four reasons that cast serious doubt about the constitutionality of the death penalty.

First, the death penalty is cruel because it is seriously unreliable. Innocent people have been executed and it has been wrongly imposed on more than 110 innocent men and women. Additionally, there is a greater likelihood of a wrongful conviction in death penalty cases than in non-capital cases.[57]

Second, the death penalty is cruel because it is arbitrarily imposed, in that it fails to meaningfully distinguish between the worst of the worst crimes and murderers. Moreover, the administration of the death penalty is also improperly influenced by factors relating to race, gender, geography, disparities in the exercise of prosecutorial discretion, insufficient resources to represent capital defendants, and political pressure on elected judges.[58]

Third, the death penalty is cruel because the long delays associated with the administration of the death penalty, undermines its penological purposes. When a death sentence is not carried out for decades — if not at all — that kind of delay undermines any retributive or deterrent value that the penalty may have had.[59]

Finally, the administration of the death penalty is unusual in that 30 states have either abolished the death penalty or have not conducted an execution in more than eight years, and administration of the death penalty is fairly rare in other states. In fact, three states —Texas, Missouri, and Florida — accounted for 80 percent of all executions in 2014.[60]

In the light of Justice Breyer’s powerful dissent, it is likely that future constitutional challenges to the death penalty will mirror the concerns expressed in that dissent. However, as noted earlier, legislatures in four states have recently repealed their death penalty laws. The arguments successfully advanced against the administration of the death penalty in New Mexico, Connecticut, Maryland, and Nebraska, and those posited by Justice Breyer in his Glossip dissent, may also prove effective in the future with other state legislatures and the public throughout the country.

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* Paul J. De Muniz, Distinguished Jurist in Residence, Willamette University College of Law and former Chief Justice of the Oregon Supreme Court. De Muniz has been involved with Oregon’s death penalty for most of his 41 year legal career. As a criminal defense attorney, he successfully fought off the state’s death penalty efforts in each capital case that he defended, and successfully argued two death penalty cases in the Oregon Supreme Court. As an Oregon Supreme Court justice he authored opinions that affirmed and reversed the imposition of the death penalty.

* Lee N. Gilgan, M.A. Criminal Justice, Western Oregon University; J.D., Willamette University College of Law. Gilgan believes that the imposition of the death penalty is constitutional under both the Oregon and Federal Constitutions. However, he opposes the administration of the Oregon death penalty because of its high fiscal costs and the shockingly prolonged incarceration of those awaiting execution, negating the retributive and deterrent penological justifications for the death penalty.

[3] For a more complete discussion on the history of colonial executions, see Robert J Cottrol, Finality with Ambivalence: The American Death Penalty’s Uneasy History, 56 Stan. L. Rev. 1641, 1644 (2004).

[4] John D. Bessler, Cruel and Unusual: The American Death Penalty and the Founders’ Eighth Amendment 66 (2012).

[11]Id. Although the English cruel and unusual provision was intended to ensure that punishments did not exceed statutory authorization, the American cruel and unusual clause was instead intended to test the validity (i.e., constitutionality) of statutorily authorized punishments.

SMITH, of South Carolina, objected to the words "nor cruel and unusual punishments;" the import of them being too indefinite.

LIVERMORE [of New Hampshire]-the clause seems to express a great deal of humanity, on which account I have no objection to it; but it seems to have no meaning in it, I do not think it necessary. . . . No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in future to be prevented from inflicting these punishments because they are cruel?

The question was put on the clause, and it was agreed to by a considerable majority.

[13] Bessler, supra at note 5, at 164. Randolph refused to add his name to the Constitution because it lacks an explicit Bill of Rights.

[15]Id. The Stuart Era is generally considered to have existed from 1603-1714 before the reigns of George I, George II, George III, and George IV from 1714-1830. For example, in England, the public hanging of a thirteen year old boy in 1801 was not cruel and unusual, nor was the public execution of a seven year old girl in 1808. Therefore, it was unlikely that many Americans, with knowledge of the harshness of English law, would attempt to utilize the cruel and unusual clause as a defense in court. Sarah T. Dike, Capital Punishment in the United States: A Consideration of the Evidence 6 (1982).

Excessive bail shall not be required, nor excessive fines imposed. Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense.—In all criminal cases whatever, the jury shall have the right to determine the law, and the facts under the direction of the Court as to the law, and the right of new trial, as in civil cases. (Italics added)

(Emphasis added).

[19] With respect to uncontrolled jury discretion, the Court observed that “In light of human history, experience, and the present limitations on human knowledge, we find it quite impossible to say that committing to untrammeled discretion of the jury the power to pronounce life or death in capital cases is offensive to anything in the Constitution.” McGautha, 402 U.S. at 207.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . .; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; . . . nor be deprived of life, liberty, or property, without due process of law . . . .

[27] The Fourteenth Amendment, in relevant parts, provides that no State shall deprive any person of “life, liberty, or property.” (Emphasis added).

[44] Scalia, J. dissenting. Justice Scalia would prefer to defer to the legislative branch “Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.” Roper, 543 U.S. 608 (Scalia, dissenting).

[49] In Baze v. Rees, 553 U.S. 35 (2008) the United States Supreme Court upheld Kentucky’s three drug lethal injection method of execution, rejecting the defendant’s Eighth Amendment argument that the risk that the injection protocols would not be followed would result in significant pain to the accused rendering the procedure cruel and unusual.

[50] In In Re Kemmler, 136 U.S. 436 (1890) the Supreme Court rejected the argument that the Eighth Amendment applied to the states, thereby allowing Kemmler to be the first person put to death in the United States by electrocution.

[51] In Wilkerson v. Utah, 99 U.S. 130 (1878) the defendant was sentenced to death by firing squad and challenged that method of execution as cruel and unusual in violation of the Eighth Amendment. Concluding that the execution by firing squad did not violate the Eighth Amendment, the Court noted that in England the condemned had been emboweled alive, burned alive, beheaded, quartered, and on some occasions subject to public dissection.

[56] In Glossip, the majority held that the Oklahoma execution — injection of a three-drug protocol of midazolam, pancuronium and potassium chloride — was not unconstitutionally cruel and unusual under the Eighth Amendment. The case was initially styled Warner v. Gross, but was renamed after Warner, the lead capital defendant in the lower courts was executed after the United States Supreme Court denied Warner’s Petition for a writ of Certiorari.

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Common Questions

Capital punishment is legal in the U.S. state of Oregon. The first execution under the territorial government was in 1851. Capital punishment was made explicitly legal by statute in 1864, and executions have been carried out exclusively at the Oregon State Penitentiary in Salem since 1904. The death penalty was outlawed between 1914 and 1920, again between 1964 and 1978, and then again between a 1981 Oregon Supreme Court ruling and a 1984 ballot measure. Since 1904, about 60 individuals have been executed in Oregon. Aggravated murder is the only crime subject to the penalty of death under Oregon law.